Michael Bordin

The decision concerns an application by Gordon S. Clarke to assess three accounts rendered by Thomas Mathews Professional Corporation (TMPC) in the context of a retainer for a removal motion.

The court addresses the limitation period for assessment, the existence of special circumstances, the nature and effect of the retainer agreement, and the proper forum for assessment.

The court finds that the accounts should be assessed together, that the retainer was a simple hourly agreement with no cap, and that the Gondosch Parties were not clients of TMPC.

The court orders the accounts to be referred to an assessment officer and stays the related Small Claims Court action.

The plaintiffs brought a medical malpractice action against two pediatric neurologists for their treatment of an infant's intractable seizures in 2003.

The infant suffered from a rare condition, pyridoxine-dependent epilepsy (PDE).

The court found that the defendants breached the standard of care by setting an insufficient observation period during a pyridoxine empirical trial, improperly concluding the treatment was ineffective, and failing to reconsider pyridoxine when seizures returned.

The court also found the defendants breached their duty to obtain informed consent by failing to advise the parents of the trial and alternative treatment options.

The court concluded these breaches caused or contributed to the infant's severe intellectual and developmental delay.

The plaintiff, Lukey Capital Corp., brought a motion for summary judgment against the defendants for failure to pay a promissory note.

The defendants admitted signing the note and making some interest payments but failed to repay the principal.

They raised various defences, including lack of clear default definition, alleged amendment of terms, lack of demand, prejudice to other creditors, and concerns about the note's execution and legal representation.

The court found no genuine issue requiring a trial, concluding that the defendants understood their obligations and failed to meet them.

Summary judgment was granted in favour of the plaintiff for the principal, outstanding interest, and fixed costs.

The accused was tried on charges of sexual assault and possession of child pornography arising from a sexual encounter with a 16-year-old coworker and an alleged Snapchat photo exchange.

Applying the subjective consent framework and the W.(D.) credibility analysis, the court accepted the complainant’s evidence, rejected the accused’s account on the disputed facts, and found that there was no consent to digital or vaginal penetration.

The court further held that the defence of honest but mistaken belief in communicated consent failed because the accused did not take reasonable steps to ascertain consent and proceeded despite clear indications of non-consent.

The Crown did not establish that the accused occupied a position of trust at the relevant time.

On the child pornography count, the absence of physical evidence and uncertainty about knowing acquisition and possession of the image left a reasonable doubt, resulting in an acquittal on that charge.

This decision concerns a Stage Two hearing under s. 278.92 of the Criminal Code regarding the admissibility of two documents authored by the complainant and given to the accused.

The accused sought to adduce these documents to challenge the complainant's credibility, arguing they were inconsistent with her police statement about the nature of their relationship.

The Crown and complainant opposed the admission, citing risks of twin myths and prejudice.

The court found the documents relevant and of significant probative value, not substantially outweighed by the danger of prejudice to the proper administration of justice.

The application was allowed, permitting the accused to cross-examine the complainant on the documents for the limited purpose of establishing any inconsistency, with the scope of questioning to be carefully circumscribed by the court.

The applicant sought an order declaring the enforcement of a second mortgage statute-barred and directing its discharge from title due to the expiry of the limitation period.

The respondent argued that an oral agreement extended the limitation period, relying on promissory estoppel and part performance.

The court found no credible evidence of an oral agreement, determined that promissory estoppel did not apply as there was no unambiguous promise or detrimental reliance, and concluded that the doctrine of part performance was inapplicable.

Consequently, the court declared the mortgage statute-barred and ordered its discharge.

The defendant, Alexa Davis, was charged with possessing fentanyl for the purpose of trafficking and possessing proceeds of crime.

She pleaded not guilty to both charges.

The central issue was whether the 23 grams of fentanyl found on her person was for personal use or trafficking.

The court, applying principles of circumstantial evidence and reasonable doubt, found that while there were indicia of both personal use and trafficking, the Crown failed to prove beyond a reasonable doubt that the fentanyl was for trafficking.

The court also found the expert evidence regarding user behaviour to be inadmissible or of limited weight.

Consequently, the defendant was found not guilty on both counts.

This decision addresses motions for contempt and to strike pleadings brought by the respondent against the applicant in a family law proceeding.

The respondent alleged the applicant failed to comply with prior disclosure orders regarding income tax returns, ODSP application, and employment search records, and also failed to pay previously ordered costs.

The court found insufficient evidence for an intentional breach to warrant a contempt finding but acknowledged outstanding disclosure.

The motion to strike pleadings was deemed premature.

The court ordered the applicant to produce the outstanding documents and pay costs within 21 days.

Additionally, at the respondent's request, the applicant's ongoing spousal support obligation was terminated, and his share of section 7 expenses was reduced from 75% to 50%.

The contempt and strike motions were adjourned, conditional on the applicant's compliance.

The accused, Dennis Frail and Ana Maglicic, were charged with aggravated assault.

The court assessed witness credibility, noting inconsistencies in the victim's and a key witness's testimony.

The Crown's first theory of liability for aggravated assault was dismissed due to reasonable doubt regarding causation of the orbital bone injury and the victim's overall credibility.

Dennis Frail was acquitted of both aggravated assault and the included offense of simple assault, as the Crown failed to prove he applied force.

Ana Maglicic was found guilty of simple assault; her defence of another person under s. 34 of the Criminal Code failed as her actions were found to be motivated by aggression and vengeance, not solely for defensive purposes.

This motion concerned the applicant's request for financial disclosure and an advance on equalization.

The court granted most of the production orders, including the respondent's 2020 T1 tax return, TD bank summary statements, Sun Life share valuation at separation, and most documents requested by the applicant's forensic accountant.

However, the motion for an advance on equalization was dismissed due to insufficient evidence regarding the necessity of funds and the applicant's inability to cover the costs.

The court heavily criticized both parties for non-compliance with electronic filing requirements, practice directions, and proper presentation of evidence, ultimately ordering no costs due to divided success and non-compliance.

The applicant father sought a motion for summary judgment to vary a 2014 parenting order, requesting sole decision-making responsibility and parenting time for their 15-year-old child, Dakota, with the respondent mother's contact at Dakota's discretion.

The applicant also sought restraints on the respondent's contact with Dakota's school and control over Dakota's important documents and travel.

The court found a material change in circumstances since the 2014 order, noting Dakota has resided solely with the applicant since 2020/2021 and communications with the respondent are stressful for Dakota.

The court granted most of the applicant's requested relief, emphasizing the child's best interests and views, and dismissed certain restraining orders due to lack of evidence.

The applicant, John Walker, sought an order under the Partition Act for the sale of a jointly owned property.

The respondents, Bethany Walker and Matthew Colling, opposed the sale, arguing it would cause them hardship amounting to oppression and requested a stay until an estate trustee was appointed and a Henson trust established.

The court found the respondents failed to demonstrate oppression, noting their inconsistent financial disclosures, the property's deteriorating condition, and the applicant's need for the sale proceeds for his care.

The court granted the order for sale, requiring the respondents to vacate and setting terms for the sale process.

The applicant mortgagee sought an order setting aside a purported tenancy agreement after obtaining default judgment and a writ of possession against the mortgagors.

On the scheduled eviction date, the occupants produced a lease that the court found to be fabricated, noting numerous discrepancies including forged signatures and dates predating the mortgagors' ownership.

The court declared the occupants to be occupants rather than tenants, set aside the purported lease under section 52 of the Mortgages Act, and ordered vacant possession within 30 days.

In a criminal trial for aggravated assault, the Crown sought to admit a witness's prior inconsistent statement for the truth of its contents.

The witness had recanted parts of her police statement given shortly after the incident, claiming intoxication at the time.

The court applied the principled approach to hearsay, assessing necessity and threshold reliability.

While necessity was met due to the witness's recantation, the court found insufficient indicia of procedural and substantive reliability.

Factors such as the witness's intoxication, absence of an oath or warning, lack of video/audio recording, and unclear circumstances of the statement's taking undermined its trustworthiness.

Despite the witness's availability for cross-examination, the court concluded that the statement's reliability was not sufficiently established to allow the trier of fact to rationally evaluate it.

The application to admit the statement was dismissed, as its low probative value was outweighed by its prejudicial effect.

This decision addresses a motion for partial indemnity costs arising from a successful pleadings motion brought by the defendants.

The plaintiffs, whose statement of claim was found deficient, sought costs themselves or costs in the cause, arguing mixed success.

The court determined that the defendants were substantially successful, as several claims were struck, some without leave to amend.

The court rejected the plaintiffs' arguments, emphasizing that a deficient pleading necessitated the defendants' motion.

Costs were fixed in favour of the defendants, payable by the plaintiffs.

The plaintiff brought a motion for summary judgment on a business loan against the corporate borrower and the individual guarantor.

The individual defendant argued she was told by a representative of the plaintiff that she would not be personally liable on the guarantee.

The court utilized its expanded fact-finding powers to hear oral evidence from the individual defendant.

The court found the defendant's evidence lacked credibility and concluded she knew she was guaranteeing the loan.

Summary judgment was granted for the outstanding loan amount.

This endorsement addresses cross-motions brought by the plaintiff, Nicole Roach, and the defendants, Estate of Daryl Roach and Rose Roach, concerning undertakings, questions taken under advisement, and refusals from examinations for discovery.

The underlying dispute involves the plaintiff's claim to an interest in property previously owned by her deceased father and stepmother.

The court ruled on the relevance of various questions and the production of documents, including communications with a property management company and witness contact information, and considered the waiver of solicitor-client privilege regarding city directives.

This is a pleadings motion brought by the defendants to strike various causes of action and allegations from the plaintiffs' statement of claim, including claims for piercing the corporate veil, fraud, breach of court orders, negligent misrepresentation, conversion, unjust enrichment, oppression, and conspiracy.

The court considered the legal sufficiency of the pleadings under Rule 21.01(1)(b) and Rule 25.11, and the possibility of granting leave to amend.

The court struck claims for breach of court orders, negligent misrepresentation, and conspiracy without leave to amend, finding they disclosed no reasonable cause of action or were frivolous/vexatious.

Claims for fraud, conversion, unjust enrichment, and oppression were struck with leave to amend, as the plaintiffs might be able to plead sufficient material facts.

The claim to pierce the corporate veil against individual defendants for fraudulent conduct was found sufficiently pleaded, but a declaration to treat corporate plaintiffs as one defendant was struck.

Allegations of false affidavits were struck due to absolute privilege, but allegations of pressuring employees to provide false statements were not.

The accused was charged with second degree murder after stabbing a stranger who was trying to help him.

The accused conceded he caused the death but raised the defence of not criminally responsible (NCR) on account of mental disorder under s. 16 of the Criminal Code.

The Crown argued the psychotic episode was solely substance-induced due to the accused's heavy drug use.

The court applied the holistic approach, considering the internal cause and continuing danger factors, and found the accused suffered from a pre-existing delusional disorder that was operative at the time of the offence.

The court concluded the accused lacked the capacity to know his act was morally wrong and rendered a verdict of not criminally responsible.

The plaintiff sued its former lawyer's estate and professional corporation for negligence and breach of contract after the lawyer allowed a construction lien to expire by failing to set the action down for trial within two years.

The defendants conceded the breach of the standard of care but disputed causation and damages, arguing the plaintiff failed to mitigate by not enforcing a related judgment and that the property lacked sufficient equity.

The court found the plaintiff did not act unreasonably in relying on the lawyer's advice that the lien was valid.

Assessing the complex evidence on the contaminated property's retrospective value, the court determined there was equity in the property and fixed damages at $472,000.